BEFORE THE WORKERS' COMPENSATION BOARD
STATE OF OREGON
In the Matter of the Compensation ) WCB Case No. 94-14511
) Claim No. 7804081E
) DOI: 01/04/93
) WCD File No. E767834
)
of ) WCB Case No. 94-12207
) Claim No. 7197417L
) DOI: 06/13/94
) WCD File No. F763859
)
DONNA E. TANNER, Claimant ) ORDER ON REVIEW
Reviewed by Board Members Hall and Christian.
The SAIF Corporation, on behalf of Kenton Station, requests
review of those portions of Administrative Law Judge (ALJ)
Lipton's order that: (1) set aside its denial of claimant's
occupational disease claim for bilateral carpal tunnel syndrome;
and (2) upheld SAIF/Yorgo's Tavern's denial of claimant's claim
for the same condition. In her brief, claimant contests the
ALJ's $1,400 attorney fee award. On review, the issues are
compensability, responsibility and attorney fees. We affirm in
part and modify in part.
We adopt and affirm that portion of the ALJ's order which found
SAIF (Kenton Station) responsible for claimant's bilateral
carpal tunnel syndrome. We add the following supplementation.
The ALJ concluded that claimant had established compensability
of her bilateral carpal tunnel syndrome as an occupational
disease. The ALJ further concluded that SAIF/Kenton Station was
responsible for that condition. On review, SAIF/Kenton Station
argues that the ALJ erred in finding the opinion of claimant's
attending physician and surgeon, Dr. Van Allen, more persuasive
than the opinions of examining physicians, Radecki and White.
We disagree.
We generally defer to the conclusions of a treating physician,
unless there are persuasive reasons to do otherwise. Weiland v.
SAIF, 64 Or App 810, 814 (1983). Here, we find no persuasive
reasons not to rely on the opinion of claimant's physician and
surgeon, Dr. Van Allen. Accordingly, on this basis, we agree
with the ALJ that claimant has established compensability of her
bilateral carpal tunnel syndrome.1
1 Because of our disposition of this case, we
find it unnecessary to address claimant's argument that ORS
656.005(24) is contrary to, and preempted by, the Americans with
Disabilities Act (ADA).
Claimant seeks an increase in the $1,400 attorney fee awarded
by the ALJ. Based on the following reasoning, we modify the
ALJ's attorney fee award.
OAR 438-015-0010(4) sets out the following factors to be
considered in determining a reasonable attorney fee: (a) the
time devoted to the case; (b) the complexity of the issue(s)
involved; (c) the value of the interest involved; (d) the skill
of the attorneys; (e) the nature of the proceedings; (f) the
benefit secured for the represented party; (g) the risk in a
particular case that an attorney's efforts may go uncompensated;
and (h) the assertion of frivolous issues or defenses.
Our review of the record reveals the following information.
The hearing regarding the carrier's denials lasted approximately
three hours and claimant called one witness. Claimant's
attorney obtained a medical report from Dr. Van Allen which
supported claimant's claim. Claimant's attorney submitted no
statement of services regarding the amount of time spent on the
case. The legal, factual and medical issues involved in the
case were of a complexity level not unlike those generally
presented for ALJ/Board resolution.
The value of the compensability issue is substantial in that
claimant required surgery. Likewise, the benefit secured is
significant in that claimant's medical bills will be paid and
she will be compensated for any disability related to her
compensable condition. Finally, with a risk of going
uncompensated for such services, claimant's counsel persuasively
and successfully advocated claimant's position at hearing,
resulting in a beneficial result.
After conducting our review, and considering the factors set
forth in the aforementioned rule, we find that a reasonable
attorney fee for claimant's counsel's services at the hearing
level is $2,500, to be paid by SAIF/Kenton Station.2
In reaching this conclusion, we have particularly considered the
complexity of the denial issue, the time devoted to the issue
(as represented by the hearing record), the nature of the
proceedings, the benefit secured for claimant, and the risk that
claimant's counsel might go uncompensated.
2 As explained in his dissenting opinion in
Paul R. Huddleston, 48 Van Natta 4 (1996), considering an ALJ's
close proximity to the litigants and their counsel, Chair Hall
refrains from second-guessing an ALJ's attorney fee award absent
compelling reasons. Here, he finds those compelling reasons.
His reasons for this conclusion are as follows.
In setting a reasonable attorney fee award, the court has
instructed the Board to consider the factors prescribed in OAR
438-015-0010(4) and provide an explanation for our award that is
"detailed enough to inform [the court] that [we] considered all
of the factors and had a reasonable basis for the award."
Higgins v. Schramm Plastics, 112 Or App 563 (1992). As the
reviewing body for ALJ's orders, he submits that the Board can
ask no less from the ALJ.
In this particular case, the ALJ's order merely states that
claimant's $1,400 award has been granted"[p]ursuant to OAR
438-15-010(4)." Lacking an explanation which is sufficiently
detailed to determine that the factors of the rule have been
considered and that there is a reasonable basis for the attorney
fee award, Chair Hall concludes that there is a compelling
reason to examine claimant's attorney fee award. Moreover, for
the reasons expressed in this decision, he finds that the ALJ's
determination of a reasonable award was
inadequate.
Finally, claimant's attorney is also entitled to an attorney
fee award for services on review. ORS 656.382(2). After
considering the factors set forth in OAR 438-015-0010(4) and
applying them to this case, we find that a reasonable fee for
claimant's attorney's services on review regarding the denial
issue is $1,750, payable by SAIF, on behalf of Kenton Station.
In reaching this conclusion, we have particularly considered the
time devoted to the issue (as represented by claimant's
attorney's statement of services, including SAIF's objections),
the complexity of the issue, and the value of the interest
involved. In determining a fee, we have not considered
claimant's counsel's services in defending the ALJ's attorney
fee award. See Saxton v. SAIF, 80 Or App 631 (1986).
ORDER
The ALJ's order dated June 23, 1995 is affirmed in part and
modified in part. In lieu of the ALJ's attorney fee award,
claimant's counsel is awarded $2,500, to be paid by SAIF/Kenton
Station. The remainder of the ALJ's order is affirmed. For
services on review, claimant's attorney is awarded $1,750,
payable by SAIF on behalf of Kenton Station.
Notice to all Parties: This order is final unless, within 30
days after the date of mailing of copies of this order to the
parties, one of the parties appeals to the Court of Appeals at
the Supreme Court Building, Salem, Oregon 97310 for judicial
review as provided by ORS 656.298. Copies of any such appeal
shall be mailed by registered or certified mail to the Board and
all other parties to this review proceeding with a proof of such
service filed with the clerk of the Court of Appeals.
Entered at Salem, Oregon on June 18, 1996
Workers' Compensation Board
Nelson R. Hall, Board Chair
G. Marie Christian, Board Member